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Alasaad v. Nielsen

United States District Court, D. Massachusetts

November 12, 2019

KIRSTJEN NIELSEN, Secretary of the U.S. Department of Homeland Security, in her official capacity; KEVIN McALEENAN, Acting Commissioner of U.S. Customs and B Protection, in his official capacity; and THOMAS HOMAN, Acting Director of U.S. Immigration and Customs Enforcement, in his official capacity, Defendants.


          Denise J. Casper, United States District Judge

         I. Introduction

         Plaintiffs Ghassan Alasaad, Nadia Alasaad, Suhaib Allababidi, Sidd Bikkannavar, Jérémie Dupin, Aaron Gach, Ismail Abdel-Rasoul a/k/a Isma'il Kushkush, Diane Maye, Zainab Merchant, Mohammed Akram Shibly and Matthew Wright (individually, by last name and collectively, “Plaintiffs”) bring this suit against the following persons in their official capacities: Kirstjen Nielsen, Secretary of the U.S. Department of Homeland Security (“DHS”),[1] Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Protection (“CBP”), and Thomas Homan, Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) (collectively, “Defendants”). D. 7 at ¶¶ 14-26. Plaintiffs, ten U.S. citizens and one lawful permanent resident, allege that Defendants' conduct-searching Plaintiffs' electronic devices at ports of entry to the United States and, in some instances, confiscating the electronic devices being searched, pursuant to CBP and ICE policies-violates the Fourth Amendment (Counts I and III) and First Amendment (Count II) of the U.S. Constitution. D. 7 at ¶¶ 1-10, 168-73. They seek declaratory and injunctive relief related to Defendants' ongoing policies and practices as well as the searches of Plaintiffs' electronic devices including expungement of “all information gathered from, or copies made of, the contents of Plaintiffs' electronic devices, and all of Plaintiffs' social media information and device passwords.” D. 7 at 40-42; D. 99 at 7-8, 12-13. Plaintiffs have now moved for summary judgment, D. 90, and Defendants have cross moved for summary judgment, D. 96. Although governmental interests are paramount at the border, where such non-cursory searches-even “basic” searches as broadly defined under CBP and ICE policies as well as the “advanced” searches of Plaintiffs' electronic devices-amount to non-routine searches, they require reasonable suspicion that the devices contain contraband. For the reasons stated below, the Court ALLOWS IN PART and DENIES IN PART Plaintiffs' motion, D. 90, and DENIES Defendants' motion, D. 96.

         II. Standard of Review

         The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant “bears the burden of demonstrating the absence of a genuine issue of material fact.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor, ” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the production of evidence that is ‘significant[ly] probative.'” Id. (alteration in original) (quoting Anderson, 477 U.S. at 249). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). On cross-motions for summary judgment, the standards of Rule 56 remain the same, and require the courts “to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int'l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).

         III. Factual Summary

         As perhaps evidenced by the parties' cross motions for summary judgment, the material facts concerning the searches of Plaintiffs' electronic devices and the policies pursuant to which CBP and ICE agents conduct border searches are undisputed. The Court gives this brief summary as background for the Plaintiffs' claims, but otherwise addresses the material facts in the analysis of the parties' respective legal positions below. This summary is drawn from the parties' statements of material facts, D. 90-2, D. 98, and D. 103-1, as well as the parties' responses to those statements, D. 99-1 and D. 105.

         The two agencies with primary responsibility for border searches are CBP and ICE. D. 90-2 at ¶¶ 1, 17; D. 98 at ¶ 1. Both agencies issued written policies on border searches of electronic devices in August 2009. D. 98 at ¶ 6; D. 99-1 at ¶ 6. In January 2018, CBP updated its policy to distinguish between two different types of searches, “basic” and “advanced, ” and to require reasonable suspicion or a national security concern for any advanced search, but no showing of cause for a basic search. D. 98 at ¶ 7; D. 99-1 at ¶ 7. Under this policy, an advanced search is defined as “any search in which an officer connects external equipment, through a wired or wireless connection, to an electronic device, not merely to gain access to the device, but to review, copy and/or analyze its contents.” D. 98 at ¶ 8; D. 99-1 at ¶ 8. The parameters of an advanced search are clearer given this definition than that adopted for a basic search, which is merely defined as “any border search that is not an advanced search.” D. 98 at ¶ 8; D. 99-1 at ¶ 8. Both CBP and ICE use the same definitions of basic and advanced searches and ICE policy also requires reasonable suspicion to perform an advanced search. D. 98 at ¶ 9; D. 99-1 at ¶ 9.[2]

         The evidence as to the border searches of Plaintiffs' electronic devices is largely the same as alleged in the amended complaint and as relied upon by this Court in its Memorandum & Order regarding Defendants' motion to dismiss. Compare D. 34 at 10-16 with D. 99-1 at ¶¶ 120-149. Accordingly, the Court will not repeat all of the details of those searches again here but summarizes them and discusses some of them further below. Plaintiffs are U.S. citizens (except Dupin, who is a lawful permanent resident) who reside across the country and in Canada. D. 98 at ¶¶ 120, 124, 126, 128, 131, 133, 136, 143, 145, 148; D. 99-1 at ¶¶ 120, 124, 126, 128, 131, 133, 136, 143, 145, 148. Each of the eleven Plaintiffs has had their electronic devices searched at the border at least once. D. 98 at ¶¶ 51-52; D. 99-1 at ¶¶ 51-52. Some of the searches were at border crossings, id. at ¶¶ 121, 130, 135, 144, although most were at U.S. airports after a Plaintiff's return to the United States on an international flight. Id. at ¶¶ 123, 125, 127, 129, 132, 134, 137, 140, 141-42, 146, 149; D. 105 at ¶ 125.1; United States v. Molina-Gomez, 781 F.3d 13, 19 (1st Cir. 2015) (noting that “[i]nternational airports . . . are the ‘functional equivalent' of an international border and thus subject to this [border search] exception”). These searches included searches of smartphones, either locked or unlocked, D. 99-1 at ¶¶ 121, 123, 125, 127, 129, 130, 132, 134, 135, 137, 140-42, 144, 147, 149, and at least as to Kushkush, Wright, and Allababidi, the search of other electronic media including, in some cases, laptop computers, id. at ¶¶ 134, 146-47; D. 105 at ¶ 125.1. Five of the Plaintiffs (Merchant, Nadia Alasaad, Dupin, Kushkush and Allababidi) have had their electronic devices searched more than once. D. 98 at ¶ 52; D. 99-1 at ¶ 52; D. 103-1 at ¶ 125.1; D. 105 at ¶ 125.1; D. 107 at 120-21. Two of the Plaintiffs, Merchant and Allababidi, have had their devices searched subsequent to the filing of the initial complaint in this case in September 2017: Merchant in September 2018, D. 98 at ¶¶ 53-54; D. 99-1 at ¶ 53, and Allababidi in July 2019, D. 103-1 at ¶ 125.1; D. 105 at ¶ 125.1. Each of the eleven Plaintiffs plans to continue to travel internationally with their electronic devices and many had or have international travel plans for later this year and into 2020. D. 99-1 at ¶¶ 170, 172, 174, 176, 178, 180, 182, 184, 186-87, 189.

         Without recounting the nature and circumstances of all of the Plaintiffs' searches, a sample of them is illustrative. Nadia Alasaad has twice had her iPhones searched at the border over her religious objections to having CBP officers, especially male officers, view photos of her and her daughters without their headscarves as required in public by their religious beliefs. D. 99-1 at ¶¶ 122-123. During the second search, which was of her daughter's phone, Alasaad alleges, and Defendants have not disputed, that a CBP officer mentioned a photograph that had been on Alasaad's phone during her earlier search but was not present in the second search. D. 91-1 at ¶ 24. Merchant is the founder and editor of a media website and has had her phones searched multiple times despite her concerns about officers seeing pictures of her without her headscarf on the phones and, on one occasion, her declining to give consent to search her phone since it contained attorney-client communications. D. 99-1 at ¶¶ 139, 142. Merchant observed a CBP officer viewing communications between her and her lawyer. D. 99-1 at ¶ 142. Dupin's phone contained information from his work as a journalist, D. 91-4 at ¶¶ 1, 4, while Bikkannavar's phone was a work phone officially owned by NASA's Jet Propulsion Laboratory, D. 99-1 at ¶ 7, and containing information from his work there, see id. at ¶¶ 7, 15.

         It is also undisputed that information gleaned by CBP or ICE agents during certain of these border searches of Plaintiffs' electronic devices has been retained. Specifically, information observed by agents during the searches of the phones of Ghassan Alasaad, Nadia Alasaad, Bikkannavar, Dupin, Merchant, Shibly and Zorri has been retained. D. 99-1 at ¶ 150; D. 94. Reports containing such information note not just the fact that agents conducted a search of an electronic device, but in some instances, observations or characterizations of the information contained therein. See, e.g., D. 94 at 3 (noting absence of contraband from visual search of digital camera's contents), 94 (noting “no derogatory items [redacted] found”), 114 (noting “[n]o derogatory observed” during media examination), 127-28 (noting the contents of a social media post). A number of Plaintiffs had their electronic devices seized during the border searches, even if CBP later returned the devices to them. D. 99-1 at ¶¶ 152, 154, 156, 160-61, 162, 166. As to one such Plaintiff, Wright, a computer programmer, CBP also extracted and retained data, including attempting to image his laptop with MacQuisition software and extracting data from the SIM cards in his phone and camera, D. 91-9 at ¶ 12, from his electronic devices, D. 99-1 at ¶ 151, and retained it for a period of fifty-six days, even if the parties agree that this data has now been returned to him. D. 98 at ¶ 166.

         IV. Procedural History

         Plaintiffs instituted this action on September 13, 2017. D. 1; D. 7. On May 9, 2018, after briefing and argument, the Court denied Defendants' motion to dismiss, D. 14, concluding that Plaintiffs had stated plausible Fourth Amendment and First Amendment claims and had standing to assert these claims and the requests for relief that they seek. D. 34. The parties each now move for summary judgment, D. 90; D. 96. The court heard the parties on the pending motions and took the matter under advisement. D. 106.

         V. Discussion

         A. Standing

         As they did in their motion to dismiss, Defendants press their arguments challenging Plaintiffs' standing in their motion for summary judgment. Defendants primarily contend that the risk of future injury is too speculative to support standing with respect to border searches and certain deficiencies with respect to Plaintiffs' claim for expungement of data from previous border searches of their electronic devices retained by the government. On summary judgment, Plaintiffs “can no longer rest on . . . mere allegations” and must instead “set forth by affidavit or other evidence specific facts, ” to establish standing, “which for purposes of the summary judgment motion will be taken to be true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (internal citations and quotation marks omitted).

         To establish Article III standing, Plaintiffs must demonstrate that they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, __U.S.__, 136 S.Ct. 1540, 1547 (2016), as revised (May 24, 2016).

         1. Standing to Seek Injunctive or Declaratory Relief

         In its ruling on Defendants' motion to dismiss, the Court ruled that Plaintiffs had demonstrated standing by plausibly alleging an injury in fact, traceable to the Defendants' alleged conduct that was likely to be redressed by a favorable decision by the Court. D. 34 at 17-24. Since Plaintiffs were seeking injunctive and declaratory relief, the Court also held that they had met their burden of showing that there was a substantial risk that the harm will occur in the future. Id. at 24. Concluding that the risk of a future search subject to ICE and CBP policies was higher for Plaintiffs than for the general population and rejecting Defendants' arguments that the allegations of such future harm were vague and speculative, id. at 20-24, the Court concluded that “Plaintiffs have plausibly alleged that they face a substantial risk of future harm from Defendants' ongoing enforcement of their border electronics search policies.” Id. at 24.

         On a more developed record, Defendants' challenge to Plaintiffs' standing now at the summary judgment stage fares no better. The nature of Plaintiffs' claimed injury remains the same (violation of constitutional rights as a result of electronic device searches conducted pursuant to official ICE and CBP border policies). Moreover, the record regarding the substantial risk of future harm has been borne out by discovery. The current record shows that agents have the potential to access information on a traveler's past searches and that such information may be used to inform decisions on future searches. D. 90-2 at ¶¶ 25-35; D. 98 at ¶¶ 25-35. At the border, both CBP and ICE have access to CBP's main database, TECS. D. 90-2 at ¶¶ 25-35; D. 98 at ¶¶ 25-35. TECS includes information about prior encounters between CBP and travelers at the border, including but not limited to “lookouts” (alerts about a traveler or vehicle that have been entered in the database by either agency or other law enforcement agencies) and the reasons for, or information discovered in, prior broad searches of electronic devices. D. 90-2 at ¶¶ 27-28, 32; D. 98 at ¶¶ 27-28, 32. Agents and officers of both agencies may access and consider the information in TECS, including information about prior border searches, in deciding whether to conduct a border search of electronic devices. D. 90-2 at ¶¶ 34-35; D. 98 at ¶¶ 34-35. ICE also has its own database, Investigative Case Management (“ICM”). D. 90-2 at ¶ 45; D. 98 at ¶ 45. ICM contains information that ICE agents may access at the border including, but not limited to, prior encounters with travelers including whether they were subject to a device search. D. 90-2 at ¶ 49; D. 98 at ¶ 49. ICM can contain “an agent's description of data in a traveler's device, but not the data itself, ” but Defendants acknowledge that “ICM information about the contents of travelers' devices can be relevant to whether to conduct a future border search of an electronic device.” D. 90-2 at ¶¶ 50-51; D. 98 at ¶¶ 50-51. Both CBP and ICE have access to CBP's Automated Targeting System (“ATS”) that flags travelers for “additional inspection.” D. 90-2 at ¶¶ 36, 44; D. 98 at ¶¶ 36, 44. Although ATS permits the officers to access dozens of other government databases, it also contains copies of data obtained from advanced searches of electronic devices obtained during prior border encounters. D. 90-2 at ¶¶ 40-41; D. 98 at ¶¶ 40-41. “ATS may use the information copied from a traveler's device to flag the traveler for heightened screening in the future.” D. 90-2 at ¶ 43; D. 98 at ¶ 43.

         This possibility, in light of the prior searches Plaintiffs have been subjected to and their future, anticipated international travel (as discussed below), translates into a sufficient likelihood that the challenged harm (i.e., search of electronic devices without cause) may occur for Plaintiffs in the future.

         The recent additional search of Allababidi's devices on July 6, 2019 furthers Plaintiffs' argument as to the risk of future harm. Allababidi had previously been subject to a border search on January 24, 2017. D. 90-2 at ¶ 125. When he declined to provide the password to his locked phone, CBP seized it to conduct an examination. Id. at ¶ 125. On July 6, 2019, Allababidi arrived at the Toronto airport for a flight to Dallas, traveling with a smartphone and a laptop. D. 105 at ¶ 125.1. CBP officers searched both devices. Id. That such search of electronic devices continues for Plaintiffs, even in the midst of their ongoing legal challenges to same, serves as further, undisputed indication of the sufficient likelihood that, unremedied, such alleged harm will continue in the future, particularly given the Plaintiffs' future plans for international travel.

         Defendants do not press the argument on summary judgment that Plaintiffs lack concrete plans for future international travel, but the Court notes that there is more than sufficient, undisputed evidence in the record as to both the frequency of Plaintiffs' international travel and the specific plans by many of the Plaintiffs to do so in the future, see D. 90-2 at ¶¶ 170, 172, 174, 176, 178, 182, 187, 189; D. 98 at ¶¶ 170, 172, 174, 176, 178, 182, 187, 189. For some examples, Bikkannavar has at least eight international trips planned by September 2020 to participate in solar car races and other related activities. D. 90-2 at ¶ 174; D. 98 at ¶ 174. Further, several of Plaintiffs have work or family commitments that require regular international travel, see, e.g., D. 99-1 at ¶¶ 176, 180, and Merchant lives in Canada but studies at university in Boston and will continue to do so until her graduation in May 2020, D. 99-1 at ¶ 182.

         This likelihood of the future harm of Plaintiffs being subjected to searches of their electronic devices is not undermined, as argued by Defendants, by the fact that the overall percentage of such searches is low. Specifically, Defendants point to the stipulated facts here that of the hundreds of millions of international travelers processed by CBP in FY2017, for one example, approximately .007% had their electronic devices searched. D. 98-7 at ¶ 13. Such evidence does not reduce the likelihood of future searches of these Plaintiffs for a number of reasons. First, the number of reported electronic devices likely is underestimated. Since the CBP calculated the total number of border searches of devices based upon closed or completed Electronic Media Reports (“EMRS”), D. 99-1 at ¶ 59, if the number of EMRs did not include all such searches, then this number may be underinclusive. The fact that there was no EMR as to the search of one of Plaintiff's smartphones (that of Nadia Alasaad on August 28, 2017, D. 99-1 at ¶ 61), suggests that this may be the case. Moreover, although CBP and ICE conduct such searches at the border, the number of searches cited above in FY2017 refers only to CBP searches and not ICE searches as ICE does not maintain records of the number of basic searches that it conducts. D. 98-7 at ¶ 14. ICE's recording of its advanced searches of electronic devices in FY2017-681- likely would be less than any number of basic searches of devices given that such basic searches do not involve the connection of external equipment to review, copy and analyze the device's contents in the way that advanced searches do. Accordingly, the total number of searches of electronic devices by both agencies is underinclusive and does not permit the Court to conclude that the total percentage of all electronic device searches is as low as .007%.

         Second, even if this percentage were higher, but not a significant percentage of the total number of travelers admitted to the U.S. each year, the likelihood of Plaintiffs having their electronic devices searched without cause is not a remote risk or “exceedingly low probability” of harm. D. 97 at 38 (citing Kerin v. Titeflex Corp., 770 F.3d 978, 983 (1st Cir. 2014)). Although Defendants suggest the record only reveals that CBP and ICE officers may have access to the various agency databases, TECS, ATS and ICM, when conducting border searches, but not that they are accessed regularly in border encounters, D. 97 at 27 n.13, the record reasonably suggests that a traveler who has previously had an electronic device searched in the past has some greater chance of having same done in the future. Even at primary inspection, CBP officers query TECS for “lookouts” and “recent border crossings, ” D. 99-1 at ¶ 29 and the TECS database includes information about prior border screenings. Id. at ¶ 34. The same is true as to secondary inspections as to the TECS database and its ATS database, which may contain copies of data from travelers' devices, id. at ¶ 41, ICE's ICM which contains information about prior border encounters “including whether travelers were subjected to device searches.” Id. at ¶ 49. Given these practices and the fact that, as discussed above, several of the Plaintiffs have been searched multiple times, none of Defendants' arguments defeat standing.

         For all of these reasons, the Court concludes that Plaintiffs have made sufficient showing of standing for the injunctive and declaratory relief that they seek.

         2. Standing to Seek Expungement

         Defendants also challenge Plaintiffs' standing to seek expungement. As Plaintiffs frame it now, they “seek to expunge information Defendants concede they retain.” D. 99 at 12. Here, Plaintiffs seek to expunge information gathered from their electronic devices (and now memorialized in officers' reports, D. 94) and any copies made of their electronic devices, social media information and device passwords. D. 7 at 42. As previously noted in the Memorandum & Order regarding the motion to dismiss, D. 34 at 24, retention of data illegally obtained by law enforcement may constitute continuing harm sufficient to establish standing to seek expungement. See Tabbaa v. Chertoff, 509 F.3d 89, 96 n.2 (2d Cir. 2007) (stating that defendants there “properly do not contest that plaintiffs possess Article III standing based upon their demand for expungement” of data collected during border searches); Hedgepath v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1152 (D.C. Cir. 2004) (holding plaintiff had standing to seek expungement of arrest record).

         Where, as here, Plaintiffs allege that such information and data was gathered as a result of the allegedly unconstitutional border searches and such harm could be addressed by expungement, contrary to Defendants' argument, D. 97 at 29-30, Plaintiffs have shown standing to seek expungement. While the ATS database appears to be the only database that may contain a copy of the data from an electronic device subject to an “advanced search, ” D. 90-2 at ¶¶ 40-41; D. 98 at ¶¶ 40-41, CBP and ICE retain the substance of data seized from both basic and advanced searches of electronic devices as an agent's description of same in the ICM database and TECS database could have been the result of either type of search. D. 90-2 at ¶¶ 26, 33, 50; D. 98 at ¶¶ 26, 33, 50. ICE policy permits retention of information from electronic devices that is “relevant to immigration, customs, and other law enforcement matters” and allows sharing of retained information with other law enforcement agencies. D. 99-1 at ¶¶ 22-23. CBP policy also permits retention of information on the same bases. D. 99-1 at ¶ 77. Specifically, the record indicates information retained from the device searches of the Alasaads, Bikkannavar, Dupin, Merchant, Shibly and Zorri. D. 99-1 at ¶ 150. Finally, Defendants retained information copied from Wright's devices but have since deleted all copies of Wright's data.[3] D. 99-1 at ¶ 55, 151. Accordingly, at least these Plaintiffs, therefore, had information gleaned from the search of their electronic devices that Defendants have retained. Here, such retention constitutes the alleged ongoing and future harm as such information can be accessed by border agents and may be relevant as to whether agents otherwise might conduct a future border search of an electronic device. D. 99-1 at ¶¶ 25- 51. Accordingly, such Plaintiffs have standing to seek expungement, even as the Court reserves for discussion below whether this remedy is warranted here.

         Having found standing as to Plaintiffs' claims, the Court now turns to the merits of their claims.

         B. Plaintiffs' Fourth Amendment ...

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